The staff of the Committee on Open Government is authorized to
issue advisory opinions. The ensuing staff advisory opinion is
based solely upon the information presented in your correspondence.

Dear Mr. Sulc:

I have received your letter of July 22 in which you sought my
views concerning a request made under the Freedom of Information
Law.

According to your letter, a resident of the Massapequa School
District alleged that a member of the Board of Education made a
statement during a public meeting that the resident "considers
disparaging." That person has sought a copy of the statement.
You
wrote, however, that "the Board member utilized his own personal
laptop computer to either read a statement or an outline of the
statement" and "claims that he never had a written copy of
the
statement and that the information that was on his laptop computer
is no longer available."

In conjunction with the foregoing, you raised the following
questions:

"1. Does the resident have a right under FOIL
to the electronic information that was on the
Board member's personal computer?

2. If the answer to #1 is yes, then what
recourse does the resident have if the Board
member claims that the computer input no
longer exists?"

First, information that you provided indicates that the
statement was prepared in preparation of a meeting and in
furtherance of the performance of the Board member's duties. If
that is indeed so, I believe that a statement would constitute an
"agency record" subject to rights conferred by the Freedom
of
Information Law, for it was produced in one's capacity as a member
of an agency, the Board of Education.

As you maybe aware, §86(4) of the Freedom of Information Law
defines the term "record" expansively to include:

The Court of Appeals has construed the definition as broadly
as its specific language suggests. The first such decision that
dealt squarely with the scope of the term "record" involved
documents pertaining to a lottery sponsored by a fire department.
Although the agency contended that the documents did not pertain to
the performance of its official duties, i.e., fighting fires, but
rather to a "nongovernmental" activity, the Court rejected
the
claim of a "governmental versus nongovernmental dichotomy" [see
Westchester Rockland Newspapers v. Kimball, 50 NY2d 575, 581
(1980)] and found that the documents constituted "records" subject
to rights of access granted by the Law. Moreover, the Court
determined that:

"The statutory definition of 'record' makes
nothing turn on the purpose for which it
relates. This conclusion accords with the
spirit as well as the letter of the statute.
For not only are the expanding boundaries of
governmental activity increasingly difficult
to draw, but in perception, if not in
actuality, there is bound to be considerable
crossover between governmental and
nongovernmental activities, especially where
both are carried on by the same person or
persons" (id.).

In another decision rendered by the Court of Appeals, the
Court focused on an agency claim that it could "engage in
unilateral prescreening of those documents which it deems to be
outside of the scope of FOIL" and found that such activity "would
be inconsistent with the process set forth in the statute" [Capital
Newspapers v. Whalen, 69 NY 2d 246, 253 (1987)]. The Court
determined that:

"...the procedure permitting an unreviewable
prescreening of documents - which respondents
urge us to engraft on the statute - could be
used by an uncooperative and obdurate public
official or agency to block an entirely
legitimate request. There would be no way to
prevent a custodian of records from removing a
public record from FOIL's reach by simply
labeling it 'purely private.' Such a
construction, which would thwart the entire
objective of FOIL by creating an easy means of
avoiding compliance, should be rejected" (id.,
254).

There is also a case involving notes taken by the Secretary to
the Board of Regents that he characterized as "personal" in
conjunction with a contention that he took notes in part "as a
private person making personal notes of observations...in the
course of" meetings. In that decision, the court cited the
definition of "record" and determined that the notes did
not
consist of personal property but rather were records subject to
rights conferred by the Freedom of Information Law [Warder v. Board
of Regents, 410 NYS 2d 742, 743 (1978)].

Based upon the foregoing, and again, assuming that a statement
is prepared in furtherance of the performance of one's duties as a
member of the Board, I believe that it would fall within the
coverage of the Freedom of Information Law.

Second, the Freedom of Information Law pertains to existing
records, and §89(3) of the Law states in part that an agency need
not create a record in response to a request. If a statement or
outline had been stored in the computer but has been erased or
obliterated, the record would no longer exist and the Freedom of
Information Law would not be applicable. In that event, the
resident may have no recourse, other than relying on the memories
of people who were present or attempting to ascertain whether
somebody present tape recorded the meeting and is willing to share
the recording.

If a statement or outline continues exist and if it is agreed
that it constitutes a "record" subject to the Freedom of
Information Law, it is noted that the statute is based upon a
presumption of access. Stated differently, all records of an
agency are available, except to the extent that records or portions
thereof fall within one or more grounds for denial appearing in
§87(2)(a) through (i) of the Law.

If the information stored in the computer was read aloud at an
open meeting, I do not believe that there would be any basis for a
denial of access. On the other hand, if the information consists
of an outline, notes, reminders, and the like, it would be
accessible or deniable in whole or in part, depending upon its
content. Of relevance would be §87(2)(g) of the Freedom of
Information Law, which provides that an agency may withhold records
that:

"are inter-agency or intra-agency materials
which are not:

i. statistical or factual tabulations or
data;

ii. instructions to staff that affect the
public;

iii. final agency policy or determinations;
or

iv. external audits, including but not
limited to audits performed by the comptroller
and the federal government..."

It is noted that the language quoted above contains what in effect
is a double negative. While inter-agency or intra-agency materials
may be withheld, portions of such materials consisting of
statistical or factual information, instructions to staff that
affect the public, final agency policy or determinations or
external audits must be made available, unless a different ground
for denial could appropriately be asserted. Concurrently,
those portions of inter-agency or intra-agency materials that are
reflective of opinion, advice, recommendation and the like could in
my view be withheld.
I hope that I have been of some assistance.